Look who's a judicial activist now

If there is one thing your typical Republican politician does not care for (I have always been given to understand), it is an “activist judge.” You know the sort of judges I mean. The ones who ignore the Constitution and “legislate from the bench,” arrogating to themselves the power that rightly belongs to the American people. In their “Pledge to America,” published shortly before the midterm elections and listing the principles by which they intend to govern, Republican congressional leaders made reference to “an overreaching judiciary” and declared: “We pledge to honor the Constitution as constructed by its Framers and honor the original intent of those precepts that have been consistently ignored.”

If there is one more thing your typical Republican politician does not care for, it is frivolous lawsuits that clog the courts and unfairly burden innocent doctors and small-business persons as they go about trying to create jobs. “The rule of law does not mean the rule of lawyers,” the 2008 GOP platform wittily observed.

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POLITICO 44

So it is puzzling to learn that 32 Republican senators have filed a friend-of-the-court brief asking a U.S. District Court judge to invalidate President Barack Obama’s health care reform. That’s 32 out of 42 GOP senators, or more than three-fourths, in these waning days of the old Congress. Several of these suits are working their way through the federal court system. Governors, such as the currently fashionable Tim Pawlenty of Minnesota, have also filed a brief, as have 63 Republican House members. John Boehner, the next speaker, feeling the full weight of his upcoming office, has filed one all by himself.

The pledge complains that “an arrogant and out-of-touch government of self-appointed elites makes decisions ... without accepting or requesting the input of the many.” But health care reform was enacted by majorities in both houses of Congress and signed into law by a president who got a majority of the people’s votes, so I don’t know who these “self-appointed elites” are.

Republicans have said they will try to repeal Obamacare as soon as they are able. They are boiling over with eagerness to get rid of Obama himself. They are welcome to try — and may succeed. They have done quite well in turning the Senate’s filibuster tradition into a virtual 60-vote requirement for passing most legislation and are now pushing to make that a 61-, or maybe 63- or 64-, vote requirement by suggesting that important legislation is illegitimate if it just squeaks through. This legislative entrepreneurialism is a strange way of honoring the original intent of the Framers. Asking unelected judges to overturn the most important new law of the president’s term is even stranger and hard to square with all the sermonizing about an out-of-control judiciary.

Notice, if you will, that the shower of abuse poured on judges in the GOP pledge (“striking down long-standing laws and institutions, and scorning the deepest beliefs of the American people,” and so on) is missing any explicit condemnation of “judicial activism.” This may be an oversight, or it may reflect a dawning realization that you can make judicial activism work for you. In other words, a “conservative” judiciary isn’t one that honors original intent, practices “strict constructionism,” follows precedent, etc. It’s one that imposes the conservative agenda.

Readers' Comments (180)

Not that I agree with their lawsuit, but the function of the judiciary is to find whether statutes are constitutional. When a court finds a law unconstitutional (or constitutional) it isn't being activist it is simply functioning in the way that the Constitution envisioned, as a check on the other branches.

That's what people don't understand. They simply claim every decision they don't agree with is by an "activist judge." Once the court says its the law its the law. It is then appealled if necessary, and once decided by the SCOTUS it is set as precedent. "Activist" decisions are only those that go agaisnt solid precedent.

So, I think those against the individual mandate (which is really the only controversial constitutional issue within HCR) have a good argument considering that SCOTUS precedent has never answered the question of the Commerce Clause being used in this fashion. Most law professors and judges would disagree with their position - two district courts have already found it constitutional - but its a good thing for the courts to deal with the issue and give clarity to the use of the Commerce Clause in this situation.

I don't think they will ultimately prevail, but the SCOTUS hasn't been this conservative since the early 1930's, so anything can really happen; but I'd expect a 5-4 decision in favor of the mandate. Justice Kennedy isn't very conservative on Commerce Clause issues and health care is unique in the way it operates in our economy in that everyone will ultimately access the healthcare system.

Seems to me the article illustrates clearly and precisely a great circular reference. One that gets the Author exactly where he wanted to go in the first place. The same place he was in the first place.

Striking down the Health Care or parts thereof has nothing to do with judicial activism at all.

For sure I understand the issue as I just received my quote for health Insurance next year. It is up, way up. So going in a straight line I suggest all you Liberal/Progressives, Pseudo Intellectuals or Pretenders use your arguments and logic in another theatre. Why, you have caused excessive financial distress to everyone and are conveniently ignoring that fact.

Seems to me the article illustrates clearly and precisely a great circular reference. One that gets the Author exactly where he wanted to go in the first place. The same place he was in the first place.

Striking down the Health Care or parts thereof has nothing to do with judicial activism at all.

For sure I understand the issue as I just received my quote for health Insurance next year. It is up, way up. So going in a straight line I suggest all you Liberal/Progressives, Pseudo Intellectuals or Pretenders use your arguments and logic in another theatre. Why, you have caused excessive financial distress to everyone and are conveniently ignoring that fact.

At no point did anyone say that starting next year your premiums would go down. If you paid any attention to the debate and how the bill was projected by the CBO, its purpose is to slow the growth of premiums over the next decade; results wouldn't come on day 1 and to claim so is ridiculous. The fact is the bill does give the power to federal and state governments to better contain costs and go after insurers who try to hike rates as yours is doing.

Its estimated that by 2020 that comparable coverage to what you have in 2010 will be, on average and adjusted for inflation, 14% cheaper. This is what CBO says. So, no matter your gripes with the bill, its far better than what the status quo would have produced over the next decade and beyond.

The way this year is ending, if there is one reason I'd vote for President Obama and that is the future make-up of the Supreme Court; if I didn't know better after yesterday, I'd think President Obama may want to change his political affiliation from the Democratic Party to the Republican Party; at least that solve the log jam as to whose running on the Republican side and then Obama can request Palin to be his 2012 running mate...now that would make good theater. Maybe we can get Hillary to give it one more go against Obama. It wouldn't be a dull 2012 cycle.

So if I read this right, Kinsley is suggesting that the Democrats should continue legislating from the bench, ignoring the law and the constitution, and legislating by bribes, threats and intimidation as they have been. But the Republicans should play nice.

No way. Not going to happen. The Democrats have perverted the constitution to such an extent that the Republicans will do whatever is necessary to check their radical socialism. The future of the country is at stake.

Strict construction is worse than specious. It's a farce. If the Constitution were so obvious and transparent, so easy from which to discern original intent, then we wouldn't have constitutional litigation. It's either there or it's not there.

You, sir have bought into the faulty premise that Republicans are rich and powerful and dummycrats are poor and helpless. Don't be a dufus. Look at the dums in Washington. How many are poor and powerless? What about the liberals in Hollywood. What about George Sorros? You have bought into the class warfare idiocy of the dummycrats. That's an old worn out record. The democrat party has been taken over by elitists that think they know better than anyone else what we, the working class Americans need. Wake up.

The article states:.

The pledge complains that “an arrogant and out-of-touch government of self-appointed elites makes decisions ... without accepting or requesting the input of the many.” But health care reform was enacted by majorities in both houses of Congress and signed into law by a president who got a majority of the people’s votes, so I don’t know who these “self-appointed elites” are.

This health care bill was rammed down the throats of the American citizen by rich powerful elitists in Washington who know nothing about the real world of the bottom dollar. You democrats have only yourselves to thank for the tea party movement. The tea party formed as a necessary voice to protest this unconstitutional bill. Democrats are short sighted. That's why the message was sent at the polls last month and unless they stand up and start supporting the taxpaying, hard working citizens of this country, the rest of them will be kicked to the curb in 2012.

Mr. Kinsley, ever the progressive advocate, knows full well why a majority of the states, most of the republican senators, and many in the house are challenging the constitutionality of the Health Care Bill based on an over reaching use of authority under the commerce clause. Rescinding this law, whether by a favorable SCOTUS ruling or by Congressional action, while important isn’t the most critical issue at hand for progressives.

Mr. Kinsley is certainly smart enough to know that time did not begin at his birth and therefore his discussion of what actions the “courts” elected to take when he said, “ It didn’t have to be this way. Judges might have taken a far more restrictive view…” is an absurd statement. In fact, prior to 1938, for the first 150 years of our countries existence judges routinely found that the commerce clause only applied to a very narrow range of activities—specifically, activity that involved actually intrastate commerce. Never in their wildest dreams did these jurists conceive of using the commerce clause to justify the wide ranging activities turned into law under FDR and later LBJ.

What is really at stake here is progressivism writ large. Were the SCOTUS to rule against the administration on the grounds that the Health Care Bill was passed because Congress had over reached its constitutional authority, as its opponents say it did, then the entire progressive agenda enacted over the past several decades is at risk of being found unconstitutional. Mr. Kinsley understands this and in this article makes lite of the validity of the argument in the same way that a small child does when he/she whistles through the grave yard.

Despite the initial findings of a couple of lower level appellate courts that the law is in fact constitutional and was properly based on the commerce clause the SCOTUS may not agree. In several recent rulings the current SCOTUS has signaled that it takes a narrower view of what is legitimate legislation under the commerce clause. With luck the court will treat the state challenges to the Health Care Bill as an opportunity to over turn the law by taking a historic view of Starie Decisis (from the founding, not the FDR era) and restore sanity into what the Congress can and can not do.

This is Michael Kinsley’s worse nightmare and the best hope for America.

Kinsley is right: Republicans are forked-tongued frauds in trying to repeal our Affordable Health Care Act and simultaneously complain about "activist judges." The only chance Republicans have of winning this battle in court is if they get some extremely activist judges to go against our Constitution and all legal precedents concerning the commerce clause. This is the very kind of judicial activity Republicans claim to hate. But we have seen the Republican judicial fraudulence before: did we hear a peep of protest when the politically corrupted and highly activist conservative Supreme Court declared corporations are persons and have free speech rights? Nope, not a peep. Democrats should follow Kinsley's lead and loudly advertise the Republican hypocrisy. The should do it it endlessly, since President Obama is likely to face another Supreme Court appointment and other judicail issues with election significance will arise over the next two years. Republicans are proving to be the worst in being the most for judicial activism. Boehner and McConnell, like most other prominent Republicans, are ready to overthrow or radically modify our Constitution. From immigration laws to citizenship laws (14th Amendment) to the equal protection clause (homosexual marriages) to Congress’ power to regulate the economy to repealing election of senators (17th Amendment) to repealing certain fundamental rights, like equality and the freedom to pursue happiness without unfair discrimination, Republicans like Boehner and McConnell either don't really know our Constitution or think it's merely an old document we should change any time we get the urge.

i say go for it GOP! apparently the $700+ billion added to the debt extending the bush tax cuts isn't sufficient in their cause of deficit/debt reduction. lets go ahead and add another $455 billion to the deficit, CBO's numbers, by repealing HCR. that should then prove beyond doubt the hollowness of their concerns over spending.

The CBO numbers are not to believed because they have been politically motivated, distorted and influenced. Of course if you are part of Big Labor (amongst other) that got special dispensations you are OK. This is just another example of Obama and his bent on class warfare and splitting us up into groups that can be manipulated. We are one people and anybody who disagrees with that does not deserve to hold the Presidential Office.

I of course could go on about all the "Untouchable" areas of Health Care that were not addressed because of the politics the Democrats put into it.

Although I have several degrees and have had responsibility for hundreds of millions in budgets and hundreds of people I do tend to simplify things. Am I paying more and will I continue to pay more in the future. The answer is YES.

Amazing that smart guys like Kinsley can be so blinded by partisanship and lack of real world business experience that they cannot even conceive the connection between Obamacare and sustained 10+% unemployment; cannot even fathom how some people do not share his boundless love of government solutions to all our problems and see fit to constantly demonize those who do not believe that individual liberty is found in compulsive deference to the state and those who run it. Kinsley, if you find it strange that people want Obamacare repealed, try talking to people outside the Democratic Beltway echo chamber; people who actually contribute to the economy and don't just live off the hard work and innovation of others.

Why don't we just keep the health care bill and extend it to everyone. Why should anyone have to pay for such an obvious "right"? Do you have to pay for free speech? How about freedom of religion?

So why should doctors and nurses receive any compensation at all? Why should they be allowed to withhold our "right" to health care from us? And certainly our "right" to health care encompasses our "right" to the medicine that accompanies our care. So big pharma must not be allowed to withhold drugs from we the people. They must provide them free of charge.

And for sure food is a part of health care--without it we would all die. So what's up with allowing the farmers to withhold food from us. They surely must provide it free of charge. Why should we have to pay for the "right" to have food?

Furthermore, isn't one of our rights the "right" to life? I can't live in the winter without shelter so I certainly shouldn't have to pay for my house or the heat for it. So why can the carpenters, plumbers, electricians, and the gas company be allowed to withhold my "right" to life from me. Isn't it clear they should provide these things free of charge? Or are we going to continue to allow these greedy people to charge me for my rights?

Is there any doubt about where this is headed? Do we want to go there?

Why don't we just keep the health care bill and extend it to everyone. Why should anyone have to pay for such an obvious "right"? Do you have to pay for free speech? How about freedom of religion?

So why should doctors and nurses receive any compensation at all? Why should they be allowed to withhold our "right" to health care from us? And certainly our "right" to health care encompasses our "right" to the medicine that accompanies our care. So big pharma must not be allowed to withhold drugs from we the people. They must provide them free of charge.

And for sure food is a part of health care--without it we would all die. So what's up with allowing the farmers to withhold food from us. They surely must provide it free of charge. Why should we have to pay for the "right" to have food?

Furthermore, isn't one of our rights the "right" to life? I can't live in the winter without shelter so I certainly shouldn't have to pay for my house or the heat for it. So why can the carpenters, plumbers, electricians, and the gas company be allowed to withhold my "right" to life from me. Isn't it clear they should provide these things free of charge? Or are we going to continue to allow these greedy people to charge me for my rights?

Is there any doubt about where this is headed? Do we want to go there?

Is health care a right or not? If it is a right then why should anyone have to pay anything for it? Do you have to pay for the right to free speech? Do you have to pay for freedom of religion?

Why should greedy doctors, nurses, drug companies be allowed to charge us for our right to health care?

For that matter, we certainly have a right to food since we can't live without it. So why are greedy farmers and farm equipment manufacturers allowed to charge us for our right to food?

And what about the right to life? I can't live in the winter without shelter and energy to heat that shelter so why should greedy carpenters, plumbers, electricians, gas companies, and electricity companies be allowed to charge me for these things that I have a right to and can't live without?